Inter-State Water Disputes

Section 5. The Tribunal investigates and forwards a report and a decision. Under the 2002 amendment it is to do so within three years, extendable by two.

Section 6. The decision, when published in the Official Gazette, is final and binding on the parties, and has the same force as an order or decree of the Supreme Court. That equivalence was added by the 2002 amendment and matters: before it, enforcement was a genuine difficulty.

Section 11. The bar. Notwithstanding anything in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under the Act.

Why they take decades

MU's question asks for the reasons for delay, so this section is the answer and should be given as a list.

One, the reference itself is discretionary in practice. A Tribunal is constituted when the Central Government is of opinion that negotiation has failed. Before 2002 there was no time limit, and requests waited years. The political cost to the Union of constituting a Tribunal, when both States are governed by parties whose support it needs, is real.

Two, a new Tribunal is constituted for every dispute. Each starts from nothing: new members, new registry, new procedure, new experts, and no accumulated jurisprudence. Nothing is reusable.

Three, the science is slow and contested. These disputes turn on hydrological data over long periods, on rainfall and yield estimates, on crop patterns and on what a "dependable flow" means. Each side commissions its own studies and the Tribunal must resolve them.

Four, there is no deadline that bites. The 2002 amendment introduced three years extendable by two, but extensions have been repeatedly granted, and the Act provides no consequence for exceeding them.

Five, the further reference under section 5(3). A party may, within three months of the report, seek explanation or guidance from the Tribunal, which then reconsiders. In practice this has functioned as a second round of litigation.

Six, the section 11 bar has not stopped litigation, it has redirected it. The bar excludes jurisdiction over the water dispute. It does not exclude a challenge to the constitution of the Tribunal, or to the validity of the Act, or a petition under article 32 alleging violation of a fundamental right, or a proceeding to enforce or interpret an award. Parties have used all of these, so the dispute reaches the Supreme Court by another door, and the exclusion adds a preliminary jurisdictional argument to every case rather than removing litigation.

Seven, the politics is unresolvable by adjudication. Water is existential for farmers in the basin and therefore decisive at elections in the basin States. A State government that accepts an adverse award pays for it, so no government accepts one willingly, and compliance becomes a further dispute.

Eight, enforcement machinery is weak. Even a binding award needs an authority to operate the reservoirs and release the water in accordance with it, and creating that authority has itself been litigated.

The 2019 amendment, and what it tries to fix

The Inter-State River Water Disputes (Amendment) Act 2019 replaced the pattern of a Tribunal per dispute with a single standing Inter-State River Water Disputes Tribunal with multiple benches, and inserted a Disputes Resolution Committee stage before adjudication, intended to settle the dispute by negotiation within a fixed period. The stated aim is to cure the first two causes of delay: the standing Tribunal removes the setting-up time and preserves institutional memory, and the Committee formalises the negotiation the Act had always assumed.

Whether it works is a fair question for an answer to raise rather than pretend to settle. The causes of delay that the amendment does not touch, the politics, the science, the enforcement and the litigation around the section 11 bar, are the larger ones.

The disputes worth naming

A short list, with what each illustrates.

The Cauvery dispute, between Karnataka, Tamil Nadu, Kerala and Puducherry. Referred to a Tribunal in 1990, final award 2007, and the Supreme Court delivered a judgment modifying the allocation in 2018 and directing the constitution of a scheme to implement it. It illustrates every cause of delay in the list above, and also the point that the section 11 bar did not keep the Supreme Court out.

The Mullaperiyar dispute, between Kerala and Tamil Nadu, about a dam built in 1895 and the safe level of its water. It illustrates the point that these are not only allocation disputes: safety, maintenance and old agreements produce the same deadlock.

The Ravi and Beas dispute, between Punjab, Haryana and Rajasthan, in which a State legislature enacted a law purporting to terminate its water-sharing agreements, and a Presidential Reference under article 143 followed. It illustrates the interaction between this subject and [Advisory Jurisdiction].

The Krishna and Godavari disputes, which had to be revisited after the creation of Telangana in 2014, illustrating that reorganisation under article 3 creates new water disputes as a by-product.

The judgments in these matters are in the case bank's queue and have not been read, so no citation is given for any of them here and none should be invented. What is stated above about each dispute is the procedural history, not a holding.

The constitutional argument to make

An answer that only lists the causes of delay is describing a problem. The federalism point is this.

Article 262 is the only place in the Constitution where an entire class of dispute between States may be removed from the Supreme Court. Article 131 gives the Court exclusive original jurisdiction over disputes between the Union and States and between States, and article 262(2) carves this one class out of it.

The justification is that these disputes are technical, polycentric and continuing, and that a court deciding a lis between two parties on the evidence before it is a poor instrument for allocating a shared resource over decades. That justification is respectable.

The cost is that the class of dispute most likely to set State against State, and most likely to need an authoritative and final answer, is the one class for which the Constitution's own final authority is unavailable. Whether that trade was worth making is the question, and the honest answer is that the machinery article 262 substituted has not delivered the speed that was its whole justification.

A worked example

States V and W share a river. V, the upper riparian, builds a barrage that reduces the flow to W. W asks the Central Government to constitute a Tribunal; nothing happens for two years. W then files a suit in the Supreme Court under article 131, and separately a writ petition under article 32 alleging that its residents' right to water under article 21 is being violated.

The article 131 suit. Section 11 of the Inter-State River Water Disputes Act 1956 provides that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of a water dispute which may be referred to a Tribunal under the Act. Parliament enacted that under article 262(2). So far as the suit asks the Court to allocate the water, it is barred.

What is not barred. The bar is on the water dispute. It does not prevent a challenge to the constitution of a Tribunal, or to the validity of the Act, or a proceeding about the interpretation or enforcement of an award, or a claim that the Central Government has failed to perform a statutory duty. W's real complaint, that the Union has not constituted a Tribunal within the time the Act allows, is of that kind, and a direction to perform the statutory duty is available.

The article 32 petition. A State is not a "person" for article 32, so W cannot bring it in its own right. Its residents could, but the relief they seek would in substance be an allocation of water, and the bar cannot be circumvented by changing the petitioner.

What the 2019 amendment changes. A single standing Tribunal removes the delay in constituting one, and a Disputes Resolution Committee must attempt settlement first. Neither cures the science, the politics or the enforcement.

The point to make. The section 11 bar has not removed litigation; it has redirected it, and added a preliminary jurisdictional argument to every case.

Quick revision

• Entry 17 List II gives water to the States, subject to Entry 56 List I on inter-State rivers, which needs a Parliamentary declaration.
• Article 262(1) lets Parliament provide for adjudication; article 262(2) lets Parliament oust the courts.
• The Inter-State River Water Disputes Act 1956: section 4 constitutes a Tribunal, section 6 makes the award binding with the force of a Supreme Court decree, section 11 bars the courts.
• The 2002 amendment added time limits and the decree equivalence; the 2019 amendment created a single standing Tribunal and a Disputes Resolution Committee.
• The causes of delay: discretionary reference, a new Tribunal each time, contested science, unenforced deadlines, the section 5(3) further reference, litigation around the section 11 bar, unresolvable politics, and weak enforcement.
• The federalism point: this is the one class of inter-State dispute the Constitution allows to be taken away from the Supreme Court, and the substitute has been slower than the thing it replaced.

Test yourself

1. Set out the three provisions that create the problem: Entry 17 of List II, Entry 56 of List I and article 262.

2. What does section 11 of the Inter-State River Water Disputes Act 1956 bar, and what does it not bar?

3. Give six reasons why these disputes take decades, and say which of them the 2019 amendment addresses.

4. What did the 2002 amendment change about the status of a Tribunal's award?

5. "Article 262 removes from the Supreme Court the one class of inter-State dispute most likely to need a final answer." Discuss.